Examination of Witnesses (Questions 247-259)
RT HON
LORD FALCONER
OF THOROTON
QC, ALEX ALLAN
AND JUDITH
SIMPSON
16 NOVEMBER 2004
Chairman: Good morning, Lord Chancellor,
Mr Allan, Judith Simpson. We will do our usual thing by declaring
interests first.
Mr Clappison: I am a non-practising Member
of the Bar.
Ross Cranston: I am a barrister and Recorder.
Keith Vaz: I am a non-practising barrister.
My wife holds a part-time judicial appointment.
Q247 Chairman: In that case can we welcome
you. We are anxious to get up-to-date on various things. Is there
anything you want to say to us before we start?
Lord Falconer of Thoroton: No,
I think not. Would you like me to formally introduce the rest
of my team?
Q248 Chairman: Yes, by all means.
Lord Falconer of Thoroton: Judith
Simpson, who is in charge of the policy team on the Supreme Court
and Alex Allan, the Permanent Secretary of the Department for
Constitutional Affairs.
Q249 Chairman: You are formally before
us for the first time, I believe?
Mr Allan: Indeed, yes.
Q250 Dr Whitehead: When you gave evidence
to us in June you mentioned the difficulty of squaring the two
principles of the Supreme Court's independence of operation and
the issue of ministerial accountability for what the court does.
I think you also said that there needs to be some arrangement
for ministerial accountability in relation to what the Supreme
Court does?
Lord Falconer of Thoroton: Yes.
Q251 Dr Whitehead: What progress have
you made in reconciling those what appear to be opposing principles?
Lord Falconer of Thoroton: In
the Bill itself at the moment there are arrangements that reflect,
I would say, normal ministerial accountability for a statutory
body, which means, in effect, the Minister, subject to whatever
representations are made by the people in the body, determines
what he should bid for and then negotiates with the Treasury.
I do not think anyone thinks that is an appropriate governance
arrangement for the Supreme Court. I think there are three alternative
models in play. One is that proposed by Lord Howe, which says
the money comes, in effect, through the House of Lords to the
Supreme Court. I am against that, on the basis that that is simply
preserving the link with Parliament, which is one of the things
that one would like to break in relation to the arrangements with
the Supreme Court. The second proposal is that something called
a "non-ministerial department" is set up. A non-ministerial
department, as you would expect, involves the Minister in the
sense that the administration of the Supreme Court would be in
the hands of a chief executive reporting to the Supreme Court
justices. He would determine how the money was spent. At the spending
round moment, he would put the budget that he and the rest of
the Supreme Court thought was appropriate to the Minister, who
would then, in effect, pass it on to the Treasury. It would be
identified separately in the relevant department's budget, which
would be the Department of Constitutional Affairs. The fourth
model is exactly the same as the third except that, instead of
passing the bid to the DCA minister, you pass it direct to the
Treasury. The choice is, in effect, between those last two. The
Select Committee in the Lords indicated they would favour the
non-ministerial department approach. No conclusion has yet been
reached. It may well be that the best model is the non-ministerial
department. You have still got the Minister passing it on, you
have got a minister, therefore, who is accountable in Parliament
for budgetary issues, but you have got a very high degree of independence
in the way that the court is run and you have got clarity about
what the Supreme Court says it needs in monetary terms.
Q252 Dr Whitehead: So this is a sort
of agency model without the key performance indicators and the
contract between the department and the agency?
Lord Falconer of Thoroton: It
would be a body which entirely set its own administrative arrangements.
There would plainly be no key performance indicators, or targets,
or anything like that, set by any ministerial department; it would
be entirely separate. For example, in relation to the appointment
of the chief executive, rather than being appointed in accordance
with ordinary patterns and then accountable to the permanent secretary
in my department, the chief executive would be entirely separate
from any departmental responsibility of that sort.
Q253 Dr Whitehead: So far as the issue
of the budget is concerned, you emphasised the need for the chief
executive to draw up the budget and present it?
Lord Falconer of Thoroton: Yes.
Q254 Dr Whitehead: Would you envisage
that the budget would effectively be a one line agreement? When
we were in Australia as a committee we did discuss the issue of
the one-line budget and its merits. Is that what would be envisaged
by the process?
Lord Falconer of Thoroton: Yes.
What you would envisage is that the Supreme Court body would set
what it thought its budget was, it would then pass it—this
is on the non-ministerial department model—to the Minister,
who would then pass it straight on to the Treasury. The negotiations
would then take place between the Minister in the DCA and the
Treasury, but it would be absolutely clear, because it would be
transparent, as to what the Supreme Court said its budget or its
bid was for that particular period.
Q255 Dr Whitehead: Some of the evidence
we have received, and, indeed, as we discussed with some judges
in Australia and New Zealand, suggested that there is a substantial
antipathy towards the idea of the new Supreme Court being, as
it were, substantial administrators in their own right. Have you
considered the possibility of perhaps the DCA remaining responsible
for ancillary staff whilst the key staff are appointed separately
through that and by the agency of that one-line budget?
Lord Falconer of Thoroton: Yes,
but the balance in considerations seems to me to be that the Supreme
Court and those who talk about it are very keen that there
should be genuine administrative independence. If you set up an
arrangement where the chief executive reporting to the Supreme
Court justices determines how it is run, I think it is for him
to decide what relationship he wants with government departments.
There will be plain benefits from his or her point of view in
having relationships whereby you can get certain economies of
scale, etc, but let the chief executive and the Supreme Court
decide what they want in relation to that. There is one caveat
to that, which is the relationship between employees in terms
of their career prospects and the Civil Service. From the point
of view of providing a proper career path, it is sensible, as
I said the last time I was here, that people who go into the Supreme
Court should continue to have some sort of relationship with the
Civil Service if they want to. The Supreme Court will be a very
small organisation without traditional promotion prospects, except
in a quite limited way. As long as the people who go in feel they
can come back to the Civil Service afterwards if they want to,
I think that provides enough career progression to encourage them
to go in there.
Q256 Dr Whitehead: Would that not create
a difference so far as the question whether they are civil servants
or not is concerned?
Lord Falconer of Thoroton: Would
you say that again?
Q257 Dr Whitehead: Would that create
a difference that is not a difference as far as the question of
whether they are civil servants is concerned?
Lord Falconer of Thoroton: I think
they would still remain civil servants; whether they would be
seconded from their department or not, I am not sure. They would
still presumably retain benefits like group pension rights, accrued
promotion rights, etcetera. Again, I think it is for the chief
executive to work out what the correct relationship is, but in
terms of administrative viability, are you going to be able to
attract good staff if it is such a small organisation? The chief
executive would obviously be a fabulous job, but if you want to
get good people to come I think career prospects and protection
of rights is quite important. Again, I think it is for the chief
executive to decide in relation to that.
Q258 Chairman: How are you getting on
with finding somewhere for the Supreme Court to sit?
Lord Falconer of Thoroton: There
are two buildings, as you know, Middlesex Guildhall and Somerset
House. Both of them raise different sorts of issues. Both of them
raise planning issues, both of them raise financial issues, because,
as you seek to solve the planning issues, so greater expenditure
may be required in order to achieve that. We are in the process
of working through development plans for both models to see which
one can be delivered. I cannot tell you what the result would
be at the moment and I cannot give you detailed financial figures
at the moment, because we are in the process of working them through.
Q259 Chairman: So neither Somerset House
nor Middlesex Guildhall have been eliminated, but no-where else
is currently in the frame?
Lord Falconer of Thoroton: Exactly.
Those two are the shortlist we are considering.
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